Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Monday, March 13, 2017

Religious Views on Gender Laws Are at Odds With Science

A few weeks ago Katie Couric did an excellent documentary on the National Geographic Channel called "Gender Revolution" that looked at the science on transgender individuals. The show should be mandatory viewing for every Republican member of Congress, every Republican in state legislatures, and every right wing hate spewing "Christian" pastor (Christian is in quotation marks since these pastors are the antithesis of Christian behavior). Among other things, the show looked at medical science's knowledge of in vitro development of fetuses and how hormones influence not only outward physical gender, but also how one perceives their gender internally. It is this hormonal influence and interplay that causes some to be born outwardly one gender when internally they deem themsevlse the opposite gender of their bodies. Something similar happens to gays and lesbians that causes what the "godly folk" deem to be sinful attraction to those of the same sex. Science and medicine tell us that there is nothing "wrong" about these attractions and internal feelings of gender. They are natural phenomenon and no "choice" is involved in such individuals love or view themselves. Only religion - specifically Abrahamic religions that trace their origins to myths propounded by uneducated Bronze Age herders - says that same sex attraction and/or gender identity are wrong. Sadly, rather than admit these truths and the reality of the source of their beliefs, the "godly folk" who are in my view desperate to maintain their make believe fantasy world, reject science and medical knowledge and cling to ignorance. In the process, they condemn gays, lesbians, and the transgender. A column in Time bu a judge and former Justice Department official looks at the fallacy of applying religious belief to the issue of gender. Here are highlights:

A
person’s biological sex seems simple but is
deceptively complex. It appears to be binary: An XX chromosomal pair
is female, and an XY chromosomal pair is male. Doctors look at a newborn’s
genitalia, pronounce the baby a boy or a girl, and the birth certificate
reflects that sex assignment.

Deep-seated religious beliefs, cultural constructs, the
regulation of sports (such as the rules confronted by Texas high-school
wrestler Mack Beggs)
and recent laws are premised on the bedrock belief that each of us is either a
man or a woman. Yet the reality is that today in the United States alone there
are approximately one million people who — from the moment of birth — cannot
clearly be defined as either male or female.

This
physiological truth is unrelated to whether someone is straight, gay or
transgender. Many individuals are born with sex chromosome, endocrine or
hormonal irregularities, and their birth certificates are inaccurate because in
the United States birth records are not designed to allow doctors to designate
an ambiguous sex. Countless people likely have no idea that they fall into this
group. The more we learn about our DNA, the more that biological sex — from the
moment of conception — looks like an intricate continuum and less like two tidy
boxes. This understanding makes it virtually impossible for judges to
consistently apply a law that permits or prohibits conduct based on whether
someone is a man or a woman.

On
February 22, the Trump Administration reversed the Obama policy [on transgender
students]. Since President Trump was elected, Alabama, Illinois, Kansas,
Kentucky, Minnesota, Missouri, New York, South Carolina, South Dakota,
Tennessee, Texas, Virginia, Washington and Wyoming lawmakers have introduced
legislation that would determine access to public restrooms and changing rooms
based on one’s assigned sex at birth.

The
most prominent case that has been in the crosshairs of this debate is G.G. v. Gloucester County School Board (“Grimm”), which challenges a Virginia school board’s policy
that requires students to use bathrooms according to biological sex.

Many
people share the ubiquitous notion that biological sex falls into two, mutually
exclusive categories. In 2009 my perspective changed when I read an article
written by a woman who learned shortly after marriage that she and her husband
couldn’t have biological children because she had an XY chromosomal pairing.
While she looked like a woman, and she and her parents had always believed she
was female, from a genetic standpoint she was a man. The article was published
the year after California passed Prop 8, a version of DOMA.

I was curious whether her situation
was an obscure medical anomaly that was statistically and legally irrelevant.
It wasn’t. A regularly cited 1991 study of nearly 35,000 newborn children found
that 1 in 426 did not have strictly XX or XY
chromosomes. In addition, the World Health Organization reports that
1 in every 2,000 births worldwide are visibly intersex, because the child’s genitals are
either incomplete or ambiguous, which equates to five newborn Americans a day.
This represents a sizable U.S. population that cannot be ignored by the law.

If such individuals have the right
to equal protection, to privacy and to use a public restroom, what clear and
science-based legal principle can our judiciary employ to determine whether
they lawfully used the correct bathroom? Reliance on a birth certificate might
appear to be a legitimate method to establish sex. But birth certificates are
surprisingly fluid documents. They are amended regularly to add or remove
parents due to adoption or because DNA results reveal paternity that is inconsistent
with the original record. They are also amended to address biology.

In 2016, I received a request from
parents seeking to change the name and sex of their baby’s birth certificate.
The parents were initially informed they gave birth to a daughter. Genital
irregularities and months of additional tests revealed that from a chromosomal
and hormonal standpoint their child was, while not strictly genetically male,
more “properly" categorized as a son. I granted their request to modify
the birth certificate to designate the child as male. The new birth certificate
replaced the original, yet neither was precisely accurate from a biological
perspective.

The United States’ stringent
adherence to a two-sex paradigm is inconsistent with science and incongruous
with the historic and modern understanding of sex throughout many regions of
the world. Dating back to 2000 B.C., three or more sexes can be found in
classical Greek, Sanskrit and Hindu texts. Currently, numerous countries
recognize a third or indeterminate sex including Australia, Canada, Germany,
India, Japan, Nepal and New Zealand. If the bill introduced into the California
state legislature in January 2017 passes, California will be the first state in
the U.S. to recognize a third, non-binary gender, for birth certificates and
driver’s licenses.

Neither DOMA nor HB2 reference gay
or transgender individuals, but there is little doubt that both laws were
designed with those populations in mind. When the Obama Administration
announced its opposition to HB2, several states swiftly voiced disapproval.
Then Oklahoma Attorney General Scott Pruitt (now the Administrator of the EPA)
sent a letter to the U.S. Department of Education stating, “Your determination
thus elevates the status of transgender students over those who would define
their sex based on biology and who would seek to have their definition honored
in the most private of places.” The Trump Administration guidance letter
reversing the Obama Administration’s policy referenced the ruling of a federal
district court in Texas that “held that the term ‘sex’ unambiguously refers to
biological sex.”

Ironically, Trump's and Pruitt’s
arguments are perhaps the most compelling ones against HB2 and similar sex- and
gender-based legislation. Our biological variability means that a two-bathroom,
based on two-sex approach is inadequate — and that’s before judges ever get to
the issue of gender identity.

In the United States, judges are
obligated to see the world through a secular lens. They must apply the law without
the influence of any religious construct or political agenda. If modern science
recognizes that sex has countless natural permutations, and if birth
certificates, physical observation and even chromosomal testing cannot reliably
categorize every individual as either male or female, then our judiciary cannot
be required to make gender findings antithetical to that reality.

When
legislators blur the lines of church and state and enact laws that permit or
prohibit conduct based on biologic gender as only male or female — whether it
is for the purpose of authorizing marriage or designating the use of public
bathrooms — they place an impossible burden on our judiciary, and ultimately on
our country and all of its people.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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